The State v Misiru Inabin

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 07 June 2018
• Citation: (2018) N7287
• Court: National Court
• Year: 2018
• Judgement Number: N7287

Full : CR No 1643 of 2016; The State v Misiru Inabin (2018) N7287

National Court: Anis J

Judgment Delivered: 7 June 2018

N7287

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1643 OF 2016

THE STATE

V

MISIRU INABIN

Kibil - Duke Of York: Anis J

2018: 21st, 22nd May & 7th June

CRIMINAL LAW – Section 229B(1)(a)(4) & (5) of the Criminal Code Act Chapter No. 262 – sexual touching of a child under the age of 16 years old – Child under the age of 12 years old – alleged breach of trust, authority and dependency – credibility of victim and accused tested – whom to believe

Case cited:

State v. Pennias Mokei (No.1)(2004) N2606

State v. Jeffery Toapas (2006) N4485

State v. Michael Rave, James Maien and Philip Baule [1993] PNGLR 85

Counsel:

Ms S. Luben, for the State

Ms J. Ainui, for the Accused

VERDICT

7th June, 2018

1. ANIS J: The accused was charged with one count of sexual touching of a child under the age of 16 years under section 229B(1)(a), (4) & (5) of the Criminal Code Act Chapter No. 262 (the CC Act). The accused pleaded “not guilty” on arraignment on 21 May 2018. The trial commenced immediately after. Presentation of submissions on verdict was heard on the next day at 9:30am on 22 May 2018.

2. This is my ruling on verdict.

INDICTMENT

3. I will refer to the victim using the initials EJ. The indictment reads in part as follows:

MISIRU INABIN of MIOKO PALPAL, Duke of York, EAST NEW BRITAIN PROVINCE stands charged that he on the 23rd day of June 2016 at Mioko Palpal in Papua New Guinea, for sexual purposes touched with his fingers, the sexual parts of a child under the age of 16 years, namely the vagina of EJ then aged 11 years old.

AND AT THAT TIME EJ was under the age of 12 years old in that she was 11 years old.

AND AT THAT TIME Misiru Inabin was in a position of trust, authority and dependency towards EJ in that he is her grandfather.

4. The supporting facts presented by the prosecution are as follows:

The victim EJ lives with her grandparents at Mioko Palpal village, Duke of York Island. On the 23rd of June 2016 between 6am and 7am the accused was at Mioko Palpal village. The accused is the victim’s grandfather’s brother. The two brothers were drinking alcohol under the victim’s home. The accused sent the victim to go to his house and get newspaper for him to roll his tobacco. The victim walked to the accused’s house. The accused followed her into the house. He took her and sat her on his lap. He kissed her on her right and told her he loved her. Then he touched her vagina with his fingers. After that they both walked back to the victim’s grandparents’ home. The victim told her grandmother Margaret Johnny Inabin what the accused did to her that same morning.

The State alleges that the accused touched for sexual purposes the vagina of the victim who is a child under the age of 12 years old. She was 11 years old at that time. The State further alleges that the accused abused a position of trust, authority or dependency in that he is the grandfather of the victim. The accused is the brother of the victim’s mother’s father.

The charge is laid pursuant to s.229B(1)(a)(4) & (5) of the Criminal Code.

ISSUES

5. The main issue relates to the evidence of EJ, her grandmother and the accused. The Court is left to decide on who is telling the truth, or who the Court should believe. If the Court is to believe the prosecution’s evidence, then the next issue would be whether the prosecution has established the elements of the offence of sexual touching beyond reasonable doubt.

SEXUAL TOUCHING

6. Section 229B(1)(a), (4) and (5) of the CC Act reads:

229B. Sexual touching.

(1) A person who, for sexual purposes—

(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or

…..

is guilty of a crime

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

…..

(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

(5) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

7. I adopt the summary of the elements of the offence of sexual touching from the case The State v. Tommy Nand (2014) N5591. His Honour Justice David sets them out as follows:

1. the accused touched;

2. for sexual purposes;

3. with any part of his or her body;

4. the sexual parts;

5. of a child under the age of 16 years.

WITNESSES

8. The prosecution called 2 witnesses. They were, (i) victim EJ, and (ii), Margaret Johnny Inabin (Margaret). The defence on the other hand called the accused as its only witness. All witnesses gave sworn evidence and were cross-examined.

VICTIM’S AGE

9. I refer to Exhibits “P2” and “P3”. They were tendered by consent by the prosecution. They were also not challenged by the defence in terms of adducing other evidence in Court during the course of the trial. The exhibits consist of Margaret’s sworn statutory declaration dated 29 July 2016 (Exhibit P2) and EJ’s clinic book (Exhibit P3). The evidence shows that EJ was born on 20 January 2005. I find as a matter of fact that EJ was born on 20 January 2005. The allegations against EJ purportedly occurred on 23 June 2016. I therefore find that EJ was 11 years old at the date of the alleged incident.

UNDISPUTED FACTS

10. The date, time and the following facts of the alleged incident was not disputed in the evidence of both the prosecution and defence: On 23 June 2016, between 6am and 7am, the accused and his brother Johnny Inabin were drinking beer under the house of Johnny Inabin. The accused’s house was a short distance away. With them were Margaret, who was Johnny’s wife and EJ. The accused sent EJ over to his house to get a newspaper for him to roll his tobacco. EJ walked over to the accused’s house. The accused followed shortly after to his house.

DISPUTED FACTS

11. The victim gave sworn evidence as follows: She said she went inside the accused’s house but could not locate the newspaper. She said she called out to him and that she was surprised to see the accused already at the house. She said that the accused asked her who in particular had sent her to get the newspaper. She said she told him that he did. She said at that moment he told her that he loved her. She asked him what he had meant by that. She said he said nothing and went ahead and kissed her on her right cheek. She said that he then sat her on his lap, lifted up her skirt and held and rubbed her vagina. She said she told him that she would report her to her grandfather. She said he advised her against reporting him. She said he told her that if she reported them, they (EJ’s grandparents) would assault her. She said after that, he gave her 90 toea and they both walked out of his house and back to the house where Johnny and Margaret were at.

12. Margaret’s sworn evidence is as follows: She said when the accused and the victim returned from the accused’s house, she recognised that the victim looked frightened or traumatised. She said just by looking at her, she could tell that something was not right about EJ. She said that later that same morning, EJ reported the incident to her. Margaret repeated what the victim had told the Court. She said she took EJ to Kokopo the next day, Friday 24 June 2016 and reported the matter at the Sexual Offence Section at the Kokopo Police Station. She said she also took EJ to the Vunapope Hospital for a medical check-up.

13. The accused gave his evidence as follows: He said he followed EJ to his house. He said he arrived and met EJ at the veranda of his house. He said he did not go into his house. He said from there, he began to tell EJ of the importance of education. He said he encouraged her to do well in school so that when she grows up she would be able to look after her grandparents as well as him and his wife. He denied the rest of the allegations that were made against him whilst he was at his house with EJ. He said after he had spoken to EJ, they both walked back to EJ’s grandparents’ house.

ASSESSMENT

14. EJ is now 13 years old. She was 11 years old when the alleged incident occurred. Her present age means that she is still a child and as such I should caution myself when assessing EJ’s sworn evidence. This is because of the fact that there are risks that may arise in a case like this where a child testifies or gives evidence in Court. For example, there is the risk that the child may not fully appreciate the purpose or meaning of giving evidence under oath, or of the need to tell the truth in Court. There is also the risk where a child may not have the capacity to recall details of the incident. And of course all such similar considerations that are tied to a child of a tender age or of children of young age. I refer to the case State v. Pennias Mokei (No.1)(2004) N2606. Justice Cannings stated and I quote:

The...